Employment law is full of surprises. Here are five employment law surprises, myths, and misconceptions:

Two Weeks’ Notice Is Not Legally Required

Giving two weeks' notice to your employer before you quit is not legally required. On the contrary, employment in California is presumed to be “at-will”. Employment is “at will” if it has no specified term. It may be terminated “at the will” of either party, meaning any time. Inversely employers can terminate employees whenever they like, so long it is not for an illegal reason.

The major exception is if the employee is employed for a contracted length of time, for example for one year. In this case, the employment could not be terminated “at-will” by either party. However, most employees do not have written employment contracts.

2. It’s An “At-Will” State. I can fire you for whatever reason I want.

Employment in California is presumed to be at-will, true. But with a big exception. Employees may not be terminated for an illegal reason. There are dozens of California and federal employment laws that prohibit termination of employment, even in an at-will context.

For example, employment may not be terminated because of a "protected characteristic". This includes terminations based on age (if over 40), ancestry, color, disability or “health” discrimination, gender, gender identity, military and veteran status, marital status, national origin, race, religion, and sexual orientation. Other policies prohibit retaliation against whistle blowers (employees who have reported illegal acts).

At-will is not carte blanche.

3. If I pay you a salary you don’t get overtime.

Employers, and even human resource managers, very frequently believe that if an employee is paid on a salaried basis, rather than an hourly basis, the employee is not entitled to overtime pay. This is not the case at all.

There are two classifications of California employees, “exempt” employees and “non-exempt” employees. Non-exempt employees are entitled to 1.5 times their hourly rate for any hours worked longer than 8 per day or 40 per week, meal breaks, rest breaks, and other protections. Exempt employees are not.

Employers and employees cannot simply agree on a classification. Rather, it is determined by looking at a complicated, multi-factor test. Each factor of the test needs to be satisfied before an employer can claim an employee is not entitled to overtime. Only one of the factors is whether the employee is paid on a salaried basis rather than an hourly basis. The most important and overlooked factor is whether or not the employee applies discretion and independent judgment on matters of significance. In simple terms, is the employee a grunt-level laborer or high level company decision maker? Read more here.

4. I was terminated without cause!

Employees often believe that if they are terminated “without cause” that they can sue their former employer. This is not the case.

Employers are not legally required to have a cause to terminate the vast majority of employees. Employers may legally terminate employees without cause, for arbitrary and unfair cause, or even out of a mistaken cause that the employee performed poorly. Without more, the failure to terminate “for cause” does not give the employee the ability to sue their employer.

What employers cannot do is terminate employees for an unlawful reason. For example, employers cannot terminate an employee because of the employee’s health condition, injury, or illness if the employee can still perform the essential functions of their job; called “disability discrimination”. Employers will often claim that an employee was fired “for cause” to disguise an otherwise illegal termination, called a “pretextual termination.” Read more about wrongful terminations here.

5. I have a hostile work environment!

The term “hostile work environment” is not a myth. It’s a common type of employment lawsuit. However, the legal definition of a “hostile work environment” is much narrower than what most employees expect.

A hostile work environment is a form of harassment in employment. However, harassment is only illegal in California if the plaintiff-employee is subjected to it because of a legally protected characteristic. Legally protected characteristics include age (if over 40), ancestry, color, disability or “health” status, gender (including pregnancy and “sexual harassment”), gender identity, military and veteran status, marital status, national origin, race, religion, and sexual orientation.

Employees do not have an illegal “hostile work environment” simply because they are overworked, are set up to fail by a rival supervisor, or because of an aggressive, mean, and vindictive working environment. The harassment must be directed at the employee because of a protected characteristic. Read about a hypothetical harassment case here.

Are you a Santa Cruz, Capitola, Scotts Valley, or Watsonville employee who wants to clarify an employment law myth? Visit BrianMathiasLaw.com

One of the very few exceptions to paying overtime in California is called an Alternative Workweek Schedule.

An Alternative Workweek Schedule is a written agreement between the employer and their employees for the employee to work longer than eight hours per day without paying overtime. The most common type of Alternative Workweek Schedule is called a “Four-Ten” meaning the employee works four, ten-hour days per week instead of five, eight-hour days per week. Under a lawfully enacted Four-Ten Alternative Workweek Schedule the employee is not entitled to any overtime even though that employee worked ten hours in a single day, which under normal circumstances would entitle her to two hours of overtime pay.

Alternative Workweek Schedules are often desired by employees because they create regular three-day weekends. Similarly, employers desire alternative workweek schedules because they can work their employees for longer stretches on any given work day without paying time-and-a half.

But Alternative Workweek Schedules come with a very big catch. In order to be valid and enforceable, the employer must strictly follow many highly technical procedure requirements to enact a lawful Alternative Workweek Schedule. These requirements can be so technical and complicated that many employers do not implement them correctly and rendering them invalid. Alternative Workweek Schedules cannot be established with a simple handshake. In fact, the requirements are so technical that an attorney is often required to establish a valid and enforceable Alternative Workweek Schedule.

As an example of some of the requirements to enact a valid and enforceable Alternative Workweek Schedule, the employer must schedule an alternative workweek election among the affected employees, draft ballots, issue pre-election disclosures, hold an election at the worksite during regular work hours, and then report the results of that election to the California Department of Industrial Relations within 30 days. And these are just some of the requirements.

There are potentially severe consequences for employers who do not follow all the legal requirements for a valid and enforceable Alternative Workweek Schedule. This includes paying overtime pay to every employee who worked under the invalid Alternative Workweek Schedule, as well as interest and wait time penalties on those unpaid wages going back several years.

Are you working a four-ten schedule or other Alternative Workweek Schedule? Contact the Law Office of Brian Mathias for a free consultation.

If you make less than $47,476.00, you may be entitled to a substantial amount of unpaid overtime by your employer due to a change in California and federal employment law.

For legal background, there are two employee classifications in California: exemptemployees and non-exemptemployees.

Exempt employees are not entitled to overtime for any hours worked in excess of eight hours per day or 40 hours per week, meal breaks every five hours, rest breaks every four hours, and other protections. A non-exempt employee could work 100 hours per week and not be entitled to anything but their regular salary (ie. $60,000 per year). A properly classified non-exempt employee must be paid a minimum salary of $47,476 beginning December 1, 2016, and must spend 51% of their time performing non-exempt job duties, such as supervising of other employees or perform high-level office work, like accounting or human resources.

Non-exempt employees are entitledto overtime, breaks, and many other protections. For example, a non-exempt employee would be entitled to 20 hours at 1.5 times their regularly hourly rate if they worked 60 hours per week. Statistically, most employees are non-exempt, even employees that spend some time managing other workers or who perform non-manual office work.

Employers regularly misclassify employees as “exempt” to avoid rigorous obligations to pay overtime and provide breaks. However, there is a common misperception among workers and employers that an employer simply needs to pay an employee a flat salary, rather than an hourly wage, in order to classify an employee as “exempt” from overtime. Payment of a salary rather than an hourly wage is just oneof many factors in determining whether an employee is properly classified.

Moreover, beginning December 1, 2016, all exempt employees must be paid a minimum salary of $47,476in order to be properly classified as exempt. This means that any worker paid under $47,476 must be paid overtime and be provided with rest breaks beginning December 1, 2016.

The new law means that many exempt employees will be getting a pay raise to $47,476 or more beginning December 1, 2016, or will be converted to hourly-paid employees. However, many employers may not change their policies in light of the new law.

All “non-exempt” employees are entitled to legally protected work breaks. A non-exempt employee is typically a non-managerial level employee, an employee who performs a physical job, or any employee who earn less than $41,600 per year. In contrast, an “exempt” employee will typically work in management or will have specialized job or background. An employee may earn much more than $41,000 per year still be considered “non-exempt.”

Numerically, most employees are non-exempt and are entitled to take protected breaks. An employee’s “classification” as exempt or non-exempt is a very fact-intensive analysis that depends on what the employee spends the majority of his or her time doing.

Employers regularly misclassify their employees. Employers have a financial incentive to classify employees as “exempt” to avoid the obligation to provide legally required breaks and to avoid paying overtime. And many employers simply do not know how rigorous their obligations are under California law. For these reasons, many employees are not provided with rest and meal breaks when they should be.

What are protected rest and meal breaks?

There are three types of protected breaks in California: rest breaks, meal periods, and recovery periods.

Rest Breaks:

Rest breaks are the most common form of legally protected break. All non-exempt employees are entitled to one, paid 10-minute rest break for every four hours worked. Most importantly, the rest break must be “duty-free”. A duty-free rest break means that the employee is not doing any work for the employer.

Meal Periods and Lunch Breaks:

Meal periods or lunch breaks are the next most common type break. One unpaid, half-hour meal period must be provided for every five hours worked. Like rest breaks, the employee must be given a realistic and meaningful opportunity to take a “duty-free” meal period. This means that employees must be permitted to leave work and be completely free of any work obligations. Employees who are required to take their lunch break at their desk are not being provided with a duty-free meal period.

Recovery or Cooldown Periods:

California also requires employers to provide five minute recovery periods or “cooldown periods” or “shade breaks” to employees who work outside in high temperatures. The purpose of this type of break is to prevent heatstroke illness. Recovery periods are the least most common form of protected break because they only apply to employees who work outdoors and in the heat, such as construction workers, agricultural workers, and landscaping employees.

What happens if an employee is deprived of their breaks?

Employers owe their employees penalties if the employee is deprived of the opportunity to take legally protected breaks. One such penalty is called a meal or rest break premium—equivalent to one additional hour’s pay at the employee’s regular rate of pay for missed breaks, up to two hours per day. These penalties can add up to thousands of dollars, especially for employees who have been deprived of their breaks for a long period of time.

As an illustration, take the case of José the bartender. José works as a bartender at a popular bar in downtown Santa Cruz. José works five nights per week from 4:30 p.m. to 2:30 a.m. and is paid $15.00 per hour. José works with one other bartender, Mike. Mike and José are the only employees on site at the bar. The bar is very popular among UCSC students and patrons are lined up at the bar waiting to buy drinks all night long. José has been repeatedly told by the bar’s owner, Jared, under no circumstance should any patron wait longer than 5 minutes at the bar for a drink.

Given the bar owner’s instructions to José about customer wait times, the bar’s popularity, and the understaffing, Jose never has the opportunity to take a duty free break at work.Unfortunately, José is abruptly terminated after he presses the wrong button on the credit card machine, resulting in a loss of hundreds of dollars to the bar.

José does not have a case for wrongful termination. However, he does have a great case for failure to provide rest and meal breaks. Since José worked ten hours per shift, he should have received two duty-free half hour meal periods and two duty-free 10-minute rest breaks. José can get the maximum penalty of two hours additional pay for every day that he was deprived two or more breaks; $30.00 per day. That totals $7,800 per year going back up to four years, or $31,200.

After unpaid overtime, interest, and state penalties are factored in, José’s damages are in excess of $100,000.

Are you a Santa Cruz, Monterey, or Salinas employee who can’t get a break at work? Contact the Brian Mathias Law. Se habla español.

Employers and employees frequently believe that if the employee is paid a salary, the employee is automatically disqualified from overtime. This is not the legal case at all.

For legal background, there are two methods of paying an employee. One is by salary, typically paid every two weeks, resulting in a set amount paid per year (ex: $60,000). The other is “hourly” where the employee is paid a wage for every hour worked (ex: $15.00 per hour).

Next, employees are placed into two legal categories or “classifications”. The first classification is called “non-exempt”. A non-exempt employee isentitled to time-and-a-half for any hours worked in excess of eight per day or forty per week and other protections. The second employee classification is called “exempt”. Exempt employees are not entitled to overtime. If a properly classified exempt employee works 60 hours per week, they are not entitled to an additional twenty hours of overtime pay.

The process of properly classifying employees as “exempt” or “non-exempt” can be legally and factually intensive. It depends on a variety of factors. Most important is the employee’s actual job duties and what the employee spent 51% or more of their time at work doing. Other factors include the employee’s level of responsibility, the amount of discretion given to the employee to perform their job, whether the employee performs manual labor, and whether the employee manages others. One factor is whether the employee is paid hourly or by salary.

Employers often oversimplify the process and only look at the salary requirement, and ignore the other factors when classifying employees.

As an illustration, let’s take the case of Ann. Ann is 5-year assistant manager at the Santa Cruz grocery store, Veggies-R-Us. Ann makes a salary of $45,000. Even though Ann averages 12 hours per day and 60 hours per week, she is not paid any overtime.

Ann spends the majority of her day stocking the shelves at Veggies-R-Us and working as a cashier. Ann’s job as an assistant manager requires her to supervise lower-level employees, which takes about 20% of her overall time. However, Ann has no authority or input in the hiring and firing process of the employees she supervises. One day, Ann is fired on the mistaken belief that she stole a box of broccoli. Ann then calls a lawyer complaining of wrongful termination.

Ann would not have a case for wrongful termination. (See my other article “What is Wrongful Termination?”). However, Ann would have a great case for employee misclassification and for unpaid overtime.

Ann spent more than 51% of her time stocking shelves and working as a cashier, both non-exempt activities under the California Labor Code. Only a fraction of her overall time was spent supervising other employees. Additionally, Ann did not have any true discretion or “independent judgment” over how lower-level employees were hired or fired.

While it’s true that Ann’s job title is that of “assistant store manager”, job titles are irrelevant in determining employee-classification and whether overtime is owed. Ann was not a true manager.

Veggies-R-Us will correctly argue that Ann was a “salaried employee”. However, paying Ann on a salaried basis is just one of many factors in determining Ann’s correct classification. Ann does not fall within any of California’s recognized exempt classifications.

Ann has a great case for overtime. She is entitled for up to three-years’ overtime (time-and-a-half) going back three years. That would be about $32.00 per hour for each hour of overtime worked, or $96,000 for the last three years. Ann is also entitled to a host of penalties, money for missed rest and meal breaks, interest on unpaid overtime. Ann has a case in excess of $125,000.

Are you a Monterey, Salinas, or Santa Cruz County employee like Ann who works long hours but receives no overtime pay? Contact the Law Office of Brian Mathias for a consultation.